Georgetown University Law Center
Scholarship @ GEORGETOWN LAW
2003
Reconsidering Legalism
Robin West
Georgetown University Law Center, [email protected]
Georgetown Public Law and Legal Theory Research Paper No. 11-55
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88 Minn. L. Rev. 119-158 (2003)
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February 2010
Reconsidering Legalism
88 Minn. L. Rev. 119-158 (2003)
Robin West
Professor of Law
Georgetown University Law Center
[email protected]
This paper can be downloaded without charge from:
Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/268/
Posted with permission of the author
Lecture
Reconsidering Legalism*
Robin Westt
About forty years ago, in 1964, the political philosopher
Judith Shklar published a remarkable book, Legalism,' in
which she put forward two propositions: first, that an ideological commitment to "legalism" unites the legal profession, including academy, bar, and bench,2 and second, that what "legalism" consists of is "the ethical attitude that holds moral conduct
to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules."3 Thus, putting
the two together, being a lawyer means that one is committed
to the ideological proposition that moral conduct is a matter of
following rules.4 In the first of two extended essays in the book,
Professor Shklar went on to make a number of arguments
about this attitude, and its relation to academic jurisprudence
and politics. First, with respect to legal philosophy, she argued
that "legalism," so understood, underlies natural law and legal
positivism both, so that at least from an outsider's perspective,
these two warring jurisprudential stances have far more in
common than either is inclined to suppose.5 Second, she argued,
legalism can be found in a "more or less" state in a wide range
of political, social, and cultural institutions and practices, and
* This contribution is based on the 2002-03 John Dewey Lecture in the
Philosophy of Law, delivered by Professor Robin West at the University of
Minnesota Law School on April 2, 2003. The lectureship is named in honor of
John Dewey, American philosopher, educator, and scholar. The John Dewey
Lectureship is funded by a grant from the John Dewey Foundation and is
sponsored by the University of Minnesota Law School to provide a forum for
significant scholarly contributions to the development of jurisprudence.
t Professor of Law, Georgetown University Law Center.
1. JUDITH SHKLAR, LEGALISM (1st ed. 1964).
2.
JUDITH SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS 8-
12 (2d ed. 1986).
3. Id. at 1.
4. See id. at 1-2.
5. See id. at 30-31, 106.
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not just in those institutions dubbed "legal." Therefore, barriers
generally drawn by professional legal philosophers between
"jurisprudence" and political and moral philosophy are artificial
and unjustified.6 Third, she argued that legalism, because of its
insistence on the morality of conduct that conforms with rules
laid down in the past, indirectly commits lawyers of all stripes
to the proposition that law is simply there-if one has a moral
duty to obey rules, it must be the case that the rules are
there 7-and accordingly, legalism commits lawyers to the formalist claim (which she clearly finds dubious) that existing law
fully determines all questions posed by conflicting rights and
duties.8 Law, then, in the empire of legalism, has a static,
given, autonomous, seamless, and complete nature, not only for
formalists, who hold this thesis quite explicitly, but in some
fashion, for virtually all lawyers.9 Lastly, Shklar argued, legalism, and hence the profession that defines itself by reference to
it, has a distinctively and unmistakably conservative hue. The
rules that define rights, and to which we are morally obligated
to conform, were by definition laid down in the past. Legalism,
she concluded, is committed to the preservation of that past,
and is virtually by definition a conservative ideological worldview.' 0
In the second essay, titled "Law and Politics," what she
later came to characterize as the "real point" of the book," she
argued that the legalist attitude-and the ideology it represents-is sometimes profoundly misplaced even where the
hopes for it are highest. 12 It was, in fact, she argued, misplaced
in the various tribunals and trials for war crimes that followed
the cessation of hostilities in World War 11.13 Even if those trials could be justified on political or consequentialist groundsand Shklar argued that at least the Nuremberg trials, if not the
6. See id. at ix-x, 2-3, 15-16, 33-35, 222-24.
7. See id. at 8-12, 15-16, 19.
8. See id. at 95, 97, 104-06, 108-09.
9. See id. at 93-110 (discussing New Deal realism and its eventual absorption into natural law).
10. See id. at 10-14.
11. Id. at xiii.
12. See id. at 170-79 (analyzing the use of legalism during the Nuremberg
trials); id. at 170-200 (analyzing the use of legalism during the Tokyo trials);
id. at 200-09 (analyzing the use of legalism during the Moscow political trials).
13. See id. at 170-200 (discussing the Nuremberg and Tokyo trials).
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RECONSIDERING LEGALISM
2003]
Tokyo trials, could be14 -they could not be justified or even understood as resting on an affirmation of legalism, from either a
positivist or natural law perspective.' 5 Those trials did not
establish, as some of the American prosecutors hoped they
would, the natural lawyer's claim that acts of aggressive warfare violated universally recognized moral laws of nature, and
for that reason, the individuals who conspired to perpetrate
them could be properly punished. 16 Nor did they establish the
positivist lawyer's claim, as some of the prosecutors hoped they
would, that the same acts could be seamlessly analogized to
domestic crimes, or punished under preexisting laws of international custom, all in accordance with positivist understandings
of law.' They substantiated, in other words, neither the natural lawyer's nor the positivist's claim that the wrongness of
these acts could be characterized as a failure to follow the
"rules laid down," and therefore that the trials for those acts
could be subsumed within legalist values.'8 Rather, no aspect of
the aggressors' acts, not the immorality, not the evil, not even
their historical character, could be sensibly characterized as a
failure to "play by the rules"-any rules, whether natural or
positive. Yet it is really that failure, and only that failure-the
failure to conform one's conduct to preexisting rules-that law
and legalism appropriately reach. Consequently, the trials represented, if anything, the limits of legalism, not its universal
reach.' 9 Inadvertently, they showed the implausibility of asserting a legalist mentality in international affairs. They did not
augur the onset of a world order, evidence the existence of an
international community, or facilitate a law of and for global
citizens-all preconditions of the natural lawyer's or positivist's
prosecutorial claim that the wrongs of World War II, and in the
case of "waging aggressive war," even its causes, could be assimilated to a legalist framework. Again, in a legalist framework, the criminality of these acts of war would have lain in the
defendants' collective failure to conform their war-making conduct to preexisting rules. The trials showed the hollowness, and
14.
15.
16.
Id. at 154-55.
Id. at 156-58.
See id. at 179-90 (discussing the prosecutorial approach taken in the
Tokyo trials).
17.
See id. at 170-79 (discussing the prosecutorial approach taken in the
Nuremberg trials).
18.
19.
See supra notes 15-17 and accompanying text.
See Shklar, supra note 2, at 127-29, 147.
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possibly the arrogance, of that hope.20
In the forty years since Shklar's book was published, not
all, but much of it, has stood the test of time, not the least of
which is the book's most basic claim-assumed rather than argued-that "legalism" is a discrete ideology, consisting in part
of the attitude and attendant belief that complying with rules
is a moral mode of being in the world. I think it is almost beyond question that this legalistic attitude-an attitudinal belief
that rule abidance is a moral mode of being in the world-is a
part of what unites the legal community in something like the
manner that Shklar so aptly described." Although still controversial, I believe Shklar's view that legalism, as she defined it,
has a conservative cast to it was also correct. 22 Legalism, law,
and lawyers insist on the value of following rules, apart from
the value of the rules, in part, because we insist on the value of
preserving those institutions of the past-markets, families,
states, nations-that are the product of those rules and that
give us our individual and collective identity. We value the
rules and their products so highly, perhaps for no other reason
than that this practice is what makes us human. 3 Of course,
when legalism is read as a constraint not only on citizens but
also on states, the same ideological stance takes on a libertarian cast as well: When state action can only be taken in conformity with rules, that increases certainty and, hence, indi-
20. See supra notes 15-19 and accompanying text.
21. Modern developments in jurisprudence have evidenced the vitality of
this understanding of legal ideology, particularly the rise of neo-formalism
over the last ten years. See Owen Fiss, Objectivity and Interpretation, 34
STAN. L. REV. 739, 741 (1982) (defending morally principled, rule-bound adjudication against the critical legal studies' charge that objectivity in judging is
unattainable); Antonin Scalia, Rule of Law as a Law of Rules, 56 U. CHII. L.
REV. 1175, 1178-79 (1989) (discussing formalism and judicial discretion);
Frank Easterbrook, Formalism, Functionalism,Ignorance, Judges, 22 HARV.
J.L. & PUB. POLY 11, 20 (1998) (arguing that rule-bound judging requires
formalism); Frederick Schauer, Formalism, 97 YALE L.J. 509, 548 (1988) (discussing various conceptions of formalism). For an excellent and sympathetic
analysis of the "New Formalism," see Thomas Grey, The New Formalism
(2003) (unpublished, on file with author).
22. The conservatism of twentieth century formalism is sometimes described as merely contingent-stemming largely from the identification of
formalist and anti-realist jurisprudence in the twentieth century with political
conceptions of a minimalist, noninterventionist state. See Grey, supra note 21,
at 4-5. Shklar sees a deeper connection.
23. See Anthony Kronman, Precedent and Tradition, 99 YALE L.J. 1029,
1064-68 (1990).
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RECONSIDERING LEGALISM
vidual, citizen, and corporate freedom. 24 Even with the libertarian caveat, however, Shklar's larger point is correct: A moral
orientation that places positive value on conformity to rules is
going to be, for the most part, in service of the status quo. Legalism, whatever else its virtues or vices, respects the authority
of the past.2 5
And, Shklar's core argument in the second half of the
book-that this legalistic moral orientation is sometimes inappropriate, and that insistence on it will sometimes inadvertently demonstrate law's limits rather than law's potentialityseems, at least on first blush, to have been well taken. More
specifically, it seems to have been borne out by the passions
and arguments of both opponents and proponents of America's
2003 war with Iraq. I will argue ultimately that this "first
blush" is misconceived, but nevertheless, there has clearly been
at least a divergence between legalist and nonlegal perceptions
of the war and its legitimacy. Thus, whatever lawyers may believe, it seems to many, and perhaps most Americans who supported (or are supportive of) this war, and who are not lawyers,
that it doesn't really matter all that much to the justification of
America's use of force whether or not Saddam Hussein was in
violation of United Nations resolutions, or whether coalition
aggression against his regime can properly be characterized as
"defensive."26 His regime was horrific, sadistic, and dangerous.
The case for toppling him, accordingly, was a moral one-to
wit, that his dictatorial regime was a humanitarian and political disaster-and not the legalistic one that he had repeatedly
defied the "law" of the United Nations. The "law" of the United
Nations, or more broadly, "international law," for many supporters of the war, was not in fact, and furthermore rightly was27
not, the trigger for the invasion and occupation of Iraq.
Rather, it was the immorality of the regime. On the other hand,
24. See Schauer, supra note 21, at 544-48.
25. See supra notes 9-10 and accompanying text.
26. See, e.g., Thomas L. Friedman, Because We Could, N.Y. TIMES, June 4,
2003, at A31 (arguing that the existence of weapons of mass destruction in
Iraq was, and remains, irrelevant to the justification of the war); David Sanger
& Carl Hulse, Republicans Dismiss Questions Over Strength of Evidence on
Banned Weapons in Iraq, N.Y. TIMES, June 18, 2003, at A14 (stating that
Bush and aides believe that the American public's relief over the ouster of
Hussein will overwhelm questions about the administration's case against
him).
27. See Victory in Iraq, Even Without Saddam and Weapons, N.Y. TIMES,
May 18, 2003, § 4, at 2.
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to many of the critics of the G.W. Bush administration's war
with Iraq, the argument against this elective, unnecessary, aggressive war was likewise, at heart, political and moral, not legal. It is wrong to engage in nondefensive warfare; it is wrong
for America to behave imperialistically; it is wrong to risk a
worldwide war of cultures; it is wrong to kill so many people
when one's own nation's security is not demonstrably threatened. Although the war's critics who were also lawyers insisted
upon the argument that such wars violate a provision of the
United Nations Charter agreement, and are accordingly illegal,
nonlawyer opponents of the war seemed to have little passion
for this view." Legalist arguments either for or against the Iraq
war, at least to many of the proponents and opponents both,
perhaps, seemed inappropriately fetishistic, hollow, or just
oddly bookish. This is impressionistic, and I know of no surveys
or studies yet done to confirm or refute this hypothesis. I conclude from this impression only that Shklar's central challenge
to the legal profession-that its organizing commitment to legalism is an inappropriate ideological framework within which
to conduct world affairs-is if anything more timely now, when
law and legalism are not only both increasingly apparent on
the world scene, but are also increasingly threatened, in international
and domestic arenas both, than when she first issued
29
it.
28. U.N. CHARTER art. 51. It was extremely important to Prime Minister
Blair, whether or not it was important to Bush, to establish that the war in
Iraq was a legal one under existing international law. See Prime Minister
Tony Blair, Statement Opening Iraq Debate in Parliament (Mar. 18, 2003),
available at http://www.number-10.gov.uk/output/Page3294.asp.
29. Although it is easy enough to multiply examples from the contested
domain of international law for Shklar's thesis, one does not have to so limit it;
our own constitutional tradition is also replete with examples of the oddly inappropriate tone of legalistic argument in political contexts where it seems out
of place. Abortion law and politics is perhaps the most obvious example. While
pro-life advocates advance the moral claim that abortion is murder, and that a
state therefore has a moral obligation to criminalize it; and pro-choice proponents advance the similarly moral claim that forced pregnancy is tantamount
to slavery, and that a state therefore has a moral obligation to ensure access to
abortion; lawyers, distinctively, argue on a different terrain altogether. The
real issue, apparently agreed upon by pro-life and pro-choice lawyers all, is
whether Roe v. Wade, 410 U.S. 113 (1973), is more like a reviled and overturned 1905 case, Lochner v. New York, 198 U.S. 45 (1905), which dealt with
maximum hours regulation of New York bakers, and therefore "wrong," or
more like a still-appreciated 1923 case involving the education of children in
languages other than English, Meyer v. Nebraska, 262 U.S. 390 (1923), and
therefore "right." The proper question, in other words, from a legalistperspective, is not whether abortion is murder or forced pregnancy is slavery, or
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125
This essay is in the spirit of a friendly amendment. I have
found Shklar's central arguments to be more compelling every
time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's
strengths, Shklar's core anthropological claim about the profession-more often asserted, rather than argued, throughout the
book-that legalism, the attitudinal glue that binds lawyers
professionally, consists of a commitment to the morality of rule
abidance-is flawed, not because it is wrong, but because it is
underinclusive. While legalism consists of something like what
she described, it is by no means only that. As Shklar herself belatedly pointed out in a preface to a new edition published
twenty years after the original, 30 her argument in the original
edition of the book was unnecessarily confused by her use of the
same term--"legalism"-to apply to two different phenomena.
First, she used the term "legalism" to refer broadly to the set of
beliefs and attitudes and moral commitments, whatever they
may be, that bind the legal profession.3" Second, she used the
word "legalism" to refer to the much more specific idea, which
whether the state is right to prohibit it or wrong to fail to ensure access to it.
Rather, the legalist questions are whether the states were following the rules
when they outlawed abortion; and whether the Supreme Court was following
the rules, in Roe, when it ruled that the states broke the rules when they outlawed abortion; and whether the Supreme Court was later following the rules,
in Planned Parenthoodof Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), when it ruled that the rule of stare decisis required it to follow the rule
of Roe v. Wade, even if Roe had itself not been decided in accordance with the
rules, when the Court ruled that the states had broken the rules. This legalistic debate must be strangely disorienting to anyone who cares about the moral
issues, for reasons analogous to those Shklar marshaled when she wrote her
justly famous critique of the war crimes tribunals: If abortion is murder, then
whether or not the state is following the rules when it outlaws it, it is nevertheless clearly right to do so, and if the rule says otherwise, then the rule is
wrong. Similarly, if forced pregnancy is slavery, then likewise whether or not
the Court is following the rules when it forbids the state to outlaw it, it is
clearly right to do so, and again, if the rule says otherwise, so much the worse
for the rule. The inclination to follow or break rules adds only de minimis to a
moral calculation, when the stakes are so high, or when the evil is so greateven in domestic politics, no less than in international. To argue about
whether acts follow the rules laid down when the acts under discussion are
arguably on the same plain as slavery or the Holocaust is worse than fetishistic; it is a sort of fascistic madness. Roe and Casey might be, to domestic legalism, what the Eichmann trials were to international law: that which in retrospect, inadvertently, and despite O'Connor's valiant attempts to the contrary
in Casey, illustrates the limits, not the potentials, of legalism as an ideology of
any meaningful utility toward the end of a just peace.
30. SHKLAR, supra note 2, at vii-xiv.
31. Id. at vii-viii.
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might, of course, be held by plenty of nonlawyers as well as
lawyers, that rule abidance is a morally good way of being in
the world.32 It is easy in retrospect to see why she used the
same word to apply to both. It was her contention then, as it
was twenty years later, that legalism in the second sense-the
belief in the morality of rule abidance-is indeed the substance
of legalism in the first sense-the ideology of lawyers, the set of
beliefs and attitudes that bind the profession, whatever they
may be. But it begs important questions to use the same word
for both. One such begged question is whether or not "legalism," understood as a belief in the morality of rule abidance,
even assuming it is a part of our legalistic ideology, exhausts it.
I think it does not. A fuller account of the ideology of legalism
would go some way toward explaining why her description of
the political cast of the profession, although partly true, is nevertheless not entirely true: why lawyers are not as homogenous
as she suggested; why all legalists are not formalists; and politically, why lawyers are not nearly as conservative a profession as her argument suggests we are. A fuller account of legalism that would grant its ideological nature and grant that it
consists in part of what Shklar describes, but then goes beyond
it, might, I think, explain why legalists, still true to legalism,
sometimes break from a Burkean respect for the past-why, in
short, legalism is not rule fetishism.
My second point, which I will take up very briefly toward
the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised,
regarding the appropriatenessof legalism in international affairs, particularly in times and matters and questions of war, in
a different light. If legalism consists of only a commitment to
the morality of playing by the rules, then it does seem oddly inappropriate in the international arena. If that's what legalism
is, then the aspirations of public international law-and maybe
even public domestic law-are on shaky ground indeed and for
the reasons, roughly, that Shklar gave: oftentimes the rules
don't exist; 33 to the extent that there are rules, the community
of nations that might give them meaning doesn't exist;3 4 the
rules that are there are too often steeped in hypocrisy rather
than common consent; 31 the motives of actors, leaders, and
32.
33.
34.
35.
Id. at viii-ix.
See id. at 147-49, 153-59.
See id. at 157-58.
See id. at 161-65.
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would-be criminals on the international scene are often far
removed from the intent to follow or break rules, even though
intent is central to findings of guilt, innocence, liability, or no
liability in legalistic regimes.36 Most important, and most generally, rules-any rules-don't now, and maybe never will, encompass the dimensions of international politics, and therefore
can't possibly govern it, and even less can they forge such an
embracing network as to imply a meaningful moral commitment so that international actors must obey them. 7 If ideological legalism is at heart a commitment to the morality of rule
following, then it seems to have a de minimis role in international politics, and what role it does have is less than inspiring.
But ideological legalism-the attitudinal stance of lawyers-consists of more than a commitment to rules, or so I want
to urge. Seeing what is left out-appreciating what ideological
legalism consists of, beyond a commitment to the morality of
rule abidance-might help us see why at least many lawyers,
and perhaps many others who are not lawyers, hold out hopes
for law, lawyers, procedures, and legal forms, even in circumstances where a bald commitment to rules for the sake of rules
and rule abidance for the sake of conformity would be seemingly inappropriate, and even wildly so.
Let me say briefly by way of further introduction why, in
my view, these reservations about Shklar's thesis have not
been raised earlier, and why they may be fruitfully raised now.
Although Shklar was unambiguously critical of legalism's excesses, its hubris, and its insularity, she did not anticipate, and
later did not embrace, the far more thorough-going critique of
legalism put forward in the decades that followed her book by
the critical legal studies movement: to wit, that the core aspiration of legalism-the control of both individual and state conduct through rules-is simply impossible to achieve (and that
the aspirations of any liberalism that depends on legalism are
likewise unattainable) because of the inherent indeterminacy of
rules--any rules. 8 If the application of rules does not lead to
36. See id. at 170-79.
37. See id. at 190-200.
38. Shklar has a short, but interesting discussion of critical legal studies
in the preface to the second edition of her book, in which she more or less
equates critical legal studies with the communitarianism and loose humanistic
Marxism of Roberto Unger. See id. at xi-xiii. As such, she finds nothing much
new in it, and distances herself from it. Id. She does not address or try to refute the indeterminacy critique, which, again, renders her own critique of le-
galism largely beside the point.
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determinate outcomes, it is hardly possible to control the conduct of state actors or citizens through their promulgation, and
it is therefore disingenuous (or naive) to praise or condemn official conduct on legalistic grounds.39 If an attitudinal commitment to this belief is the glue that binds the profession, then
the profession rests on an illusion, just as does any political liberalism that purports to rest on the same quicksand. ° This
quite different critique of legalism-that its aspirations are impossible to achieve-obviates the logic of Shklar's much more
friendly, internal, and limited criticism-that legalism misunderstands its own political and ideological nature, that it often
overstates its boundaries, and that it expresses ideals and
hopes sometimes inappropriate to certain political contexts in
which it is often raised. The critical legal studies view also, less
directly, obviates the logic of the criticism of Shklar's critique
that I want to raise here-that philosophical legalism, understood as a commitment to the morality of rule abidance, is a
39. There are now so many demonstrations of this indeterminacy critique
in action that it is increasingly meaningless to string cite them. For a striking
modern example, see the exchange between Jack M. Balkin and Sanford Levinson, and Frank I. Michelman, on whether or not a critical legal studies devotee (the subject of the exchange was Mark Tushnet) could possibly, or consistently, criticize a case such as Bush v. Gore (or any other case) as wrongly
decided. Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal
Academics: The Roles of Law Professorsin the Wake of Bush v. Gore, 90 GEO.
L.J. 173 (2001); Frank I. Michelman, Tushnet's Realism, Tushnet's Liberalism,
90 GEO. L.J. 1999 (2001). I comment on their debate in Robin West, Reconstructing the Rule of Law, 90 GEO. L.J. 215 (2001). Some of the classic indeterminacy critiques include Clare Dalton, An Essay in the Deconstructionof
Contract Doctrine, 94 YALE L.J. 997 (1985) (deconstructing contract law);
Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33
STAN. L. REV. 591 (1981) (deconstructing criminal law); Duncan Kennedy,
Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685
(1976) (deconstructing contract law); Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518
(1986) (showing the phenomenology of a deconstructive approach to adjudication); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,96 HARV. L. REV. 781 (1983) (deconstructing
constitutional law).
40. The fullest argument to this effect, that holds hostage not only legalism, but liberalism as well, to the indeterminacy critique, is Mark Tushnet's
early book, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL
LAW (1988). The argument is contained in the first three substantive chapters,
which examine judicial review as a function for perfecting democracy, for ensuring morally good answers to political questions, or for achieving justice. See
id. at chs. 1-3. Legal indeterminacy frustrates all three purported purposes,
but liberalism clearly requires purposive judicial review. See id. Therefore, liberalism, as a political ideal, fails. See id.
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part of, but not all of ideological legalism. I do not doubt that
philosophical legalism-a moral commitment to rule abidance-is a necessary part of legalism-"anthropological legalism," so to speak-writ large. What I want to urge is that it is
not sufficient. But clearly, if philosophical legalism is even a
necessary part of the ideology, whether or not sufficient, and if
it is incoherent for the reasons put forward by the critical legal
studies movement, then there's not much point to further inquiry. Legalism as an ideology, even if a broad, encompassing,
and more ecumenical ideology than that described by Shklar, is
incoherent, if any necessary part of it is.
It is primarily for this reason, I think, that neither Shklar's
descriptive account of legalism, nor the specific critique she
mounted against it, has had the hearing it deserved. In the
time since the book came out, and largely because of the impact
and successes of the critical legal studies movement, we have
been absorbed instead with questions concerning legalism's
possibility: is it possible, whether or not desirable, to conform
conduct to rules; is it possible, whether or not desirable, to constrain the actions of states and their agents by rules; is it possible, whether or not desirable, to decide cases along the lines
demanded by the rule of law. This diversion away from the actual substantive content of Shklar's descriptive and critical account of legalism, I think, has been unfortunate. Shklar, after
all, intended her "polemical" treatment of legalism to begin a
dialogue, not end one. She meant, above all else, to ask, not answer, a series of questions about legalism's point, its value, its
universality, and ultimately its contribution to world history
and to the affairs of state. Those questions are the wrong questions, if legalism is incoherent-if its aspirations are themselves impossible to even sensibly state, much less achieve. Legalism, as she defined it, has no point, no value, and no
contribution to world history, other than, of course, to obfuscate, mask, and mystify the nature of power.
Perhaps it is now time to venture the suggestion that the
answer to the question posed by the critical legal studies community regarding legalism's possibility seems to be yes, legalism is a live possibility, even in spite of law's relative indeterminacy, and for at least two reasons, both of which have been
advanced in recent years by critical scholars themselves. First,
indeterminacy may be a significant but nevertheless limited
quality of rules; second, the indeterminacy of rules may not
mean that outcomes themselves are indeterminate. If rules can
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be sensibly read, and typically are read, against a backdrop of
agreed-upon, community-wide predispositions, or "prejudices,"
to use the Gadamerian term, or interpretive understandings,
then rules lead to outcomes, in spite of their literal indetermi-
nacy." In either case, a commitment to legalism is possible,
even given some indeterminacy in rules: The morality of according one's conduct to rules survives the indeterminacy of
rules if the indeterminacy is partial instead of total, and if the
rules, coupled with attitudinal and shared interpretive predispositions, generate determinate results. What Shklar identified
and what might best be called "philosophical legalism"-the
belief that following rules is a moral way of being in the
world-is a coherent position, the limited indeterminacy of
rules notwithstanding, and the mode of being it suggests,
whether or not desirable or morally attractive, is most assuredly attainable. If philosophical legalism has emerged after a
thirty-year critique as at least a coherent view, then we can
sensibly pose both the descriptive question anew, of whether or
not it is a correct or exhaustive account of legal ideology, as
well as the normative question, whether or not that ideological
worldview is a desirable one, and when, and where, it may be
inappropriate. Those are precisely the questions that Shklar's
41. The indeterminacy thesis has meant many things, but the most plausible thesis is that legal decisions are not "determined" by legal rules because
the rules are themselves "indeterminate." This does not mean, one should
stress, that the results are themselves random or even indeterminate; instead
it means that the stability of the results is a function of pre-interpretive assumptions, prejudices, or expectations rather than a function of the stability of
rules. The results may then be fully determinate-even depressingly overdetermined-even if the rules have the fluidity the critical scholars suggested.
See Fiss, supra note 21, at 762; Margaret Radin, Reconsidering the Rule of
Law, 69 B.U. L. REV. 781, 781, 813 (1989) (stating that, in light of the limited
version of the indeterminacy thesis, the rule of law should be reinterpreted
rather than abandoned). The account of indeterminacy that seems to have
survived over the last three decades might best be called Gadamerian, rather
than Derridian: It is the quite limited claim that interpretation invariably occurs within a context of predispositions and "prejudices," which give to the interpreted work a particular meaning and a range of stable possible meanings.
Those meanings are a function of the predispositions and prejudices of the
community of readers, as much as of the ambiguities in the work itself. For an
exploration of the role of Gadamerian interpretation in legal analysis and its
relation to critical legal theory, see the Symposium on PhilosophicalHermeneutics and Critical Legal Theory, 76 CHI.-KENT L. REV. 1125 (2000). For a
(somewhat) more critical assessment of the role of Gadamerian thought in at
least radical legal criticism and the comments on the collected articles, see
Robin West, Are There Nothing but Texts in This Class?, 76 CHI.-KENT L.
REV. 719 (2000).
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book raised. There is surely no time like the present, when
ideological legalism is again so squarely on the world stage and
in a political forum where its appropriateness is anything but
obvious, to restart this interrupted conversation.
LEGAL PACIFISM
The "friendly amendment" to Shklar's thesis that I want to
suggest in this essay is simply that "ideological legalism" consists not only of an attitudinal commitment to the morality of
playing by the rules, but also an attitudinal commitment to the
preferability of Hobbesian Peace over a Hobbesian Warre.42 Less
metaphorically, legalism consists not only of a commitment to
rules, but also of the judgment that the sovereignty of the state
is better than the natural sovereignties of nature, at least to
this extent: Public power exercised in the interest of the people
is to be preferred to private violence exercised toward the end
of individual vainglory, or the consequences of that violence.
Attitudinally, lawyers like not just rules, but also peace, and
broadly concur in the Hobbesian claim that a state, and the law
it produces, are positive goods because they are one way to
achieve peace. If we complement the commitment to rules, ably
demonstrated by Shklar, with the commitment to peace
through law, as argued by Hobbes, a more accurate and I believe more appealing portrayal of the attitudinal and ideological core of legalism emerges.
Just to refresh recollection, let me begin to build the case
for this claim with a (somewhat extended) reference back to
Hobbes. Hobbes begins his argument for the Leviathan with
this famous observation about the quality of life in a state of
nature:
[D]uring the time men live without a common Power to keep them all
in awe, they are in that condition which is called Warre; and such a
warre, as is of every man, against every man. For WARRE, consisteth
not in Battell onely, or the act of fighting. . . the nature of War, consisteth not in actuall fighting; but in the known disposition thereto,
during all the time there is no assurance to the contrary. All other
time is PEACE.
Whatsoever therefore is consequent to a time of Warre, where
every man is Enemy to every man; the same is consequent to the
time, wherein men live without other security, than what their own
strength, and their own invention shall furnish them withall. In such
condition, there is no place for Industry; because the fruit thereof is
42. THOMAS HOBBES, LEVIATHAN 88-89 (Richard Tuck ed., Cambridge
Univ. Press 1996) (1651).
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uncertain: and consequently no Culture of the Earth; no Navigation,
nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things
as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of
all, continuall feare, and danger of violent death; And the life of man,
solitary, poore, nasty, brutish, and short.43
Cast against the nasty, brutish, short life, bereft of art, letters, knowledge, history, culture, and society, Hobbes argued, a
life in a state with an organized sovereign authority, in which
force is monopolized, and which has the legitimate, delegated
authority to deter, prevent, and punish private violence has
much to commend it. The individual who can live without fear
is freed, in a state of peace, not only to pursue industry, but
also to pursue culture, education, navigation, knowledge, architecture, history, the arts, letters, and society-loosely, to pursue pleasure in life-from which he is barred, in the state of
nature, by fear and the constancy of effort required to keep the
violence, that is the fear's root cause, at bay." This, as we learn
from Hobbes's able biographers, Hobbes knew firsthand.45 To
secure freedom from fear, the source of that fear must be addressed, and the source of it is the propensity toward violence
of other men-motivated, as all men are, Hobbes thought, by
the thirst for power and domination, by the need to defend oneself, and by vanity. 6 To hold at bay this propensity toward debilitating violence, all men, for the most passionate of reasons,
rationally agree to delegate their power and right to use it to a
central sovereign. That central sovereign, now with a monopoly on the legitimate use of violence and force, can then deter
violent private aggression, and thereby guarantee a measure of
security, safety, and freedom from fear-and thus improve,
hugely, the quality of life, as well as longevity, of all.
The consequence, still following Hobbes's lead, of the inhabitants' decision in the state of nature, to delegate to a sovereign power their natural right to use whatever force and violence is necessary to promote their own glory, to protect
themselves against the violence of others, and to achieve dominion over others, is that the sovereign to whom that natural
right is delegated is under a duty-we might call it, in fact, a
43. Id.
44. Id. at 89.
45. See Richard Tuck, Introduction to HOBBES, supra note 42, at ix, x-xii.
46.
HOBBES, supra note 42, at 88.
47. Id. at 90, 121.
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"first duty"-to provide those who have so bargained, a measure of protection against violence. 48 The means by which the
sovereign does so is the promulgation of laws. Derivatively,
Hobbes was very clear, the citizen has a positive right to that
protection.4 ' The Hobbesian citizen has a fundamental right, in
other words, to the protection of law, and when the citizen no
longer receives that protection, the citizen's reciprocal duty of
loyalty to the sovereign abruptly ends.5 ° The "first duty" of a
state, both in Hobbes's classic treatment and I will suggest in a
moment in the liberal tradition that followed, is not, or not
only, to constitute itself in a set of rules so as to limit its own
formidable power. The "first duty" of the state is to promulgate
positive law that will deliver citizens out of the state of fear
that is the subjective reality of the state of warre, or the state of
nature, and into the state of freedom from fear, that is the subjective reality of the state of civic life, or peace.
Of course, for the presence of law, and the state, or the sovereign that produces it, to actually be superior to the state of
nature, the power of the sovereign must be controlled so that it
is less fearsome than the power of the citizen's natural competitor in the state of nature the commonwealth replaced. It is obviously no secret that this danger, and the need to address it,
notoriously, was not Hobbes's strong suit." Much of the liberal,
social-contractual tradition that followed in Hobbes's footsteps
can be best read as seeking to close this gap in Hobbes's politics. Perhaps the danger of the too-strong-sovereign can be addressed through a regime of rights, as a number of rights theorists and constitutionalists have urged since Hobbes penned
Leviathan; 2 perhaps it can be addressed through democratic
48. Id. at 121, 153.
49. Id. at 153.
50. Id.
51. Mark Tushnet refers to this problem as liberalism's central dilemma,
thus equating liberalism with Hobbesianism, and Hobbes's shortcomings with
liberalism's. See TUSHNET, supra note 40, at 4-10. For recent scholarship on
Hobbes that addresses this theme, see Jean Hampton, Democracy and the
Rule of Law, in THE RULE OF LAW 13 (Ian Shapiro ed., 1994), and Michael P.
Zuckert, Hobbes, Locke, and the Problem of the Rule of Law, in THE RULE OF
LAW, supra, at 63.
52. See John Locke, The Second Treatise of Government: An Essay Concerning the True Original,Extent, and End of Civil Government § 135, in JOHN
LOCKE, Two TREATISES OF GOVERNMENT 267, 357 (Peter Laslett ed., Cam-
bridge Univ. Press 1988) (1690). Locke is, of course, the inspiration for this regime of rights, but contemporary constitutionalists in the rights tradition do
not limit rights to property and life, as Locke seems to have done. See, e.g.,
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controls that harness the power of the sovereign to the will of
the people;53 or, perhaps it can be at least partly addressed
through legalism itself.54 Or perhaps through all three-but
clearly, it must be addressed. Otherwise, the cause of the nastiness, brutality, fear, and barrenness has simply shifted from
private violence to public force.
In seeking some resolution of the Hobbesian dilemma,
however, political liberals as well as liberal theorists have not
lost sight of the central Hobbesian insight that makes the dilemma worth solving. The quality of life in a state that possesses the power to pass law that can in turn deter, limit, and
punish private aggression is superior to the quality of a life limited and clouded by the constant threat of violence and domination by others, and for just the reason given by Hobbes: Without security against violence, life is not only short, unpleasant,
and fearful, but also lacking in culture, industry, love, education, arts, letters, and society. It is a qualitative difference that
is so great, thought Hobbes and with good reason, that it is sufficient to induce otherwise free men to give up a substantial
portion of their liberty, pledge their loyalty to the commonwealth, and delegate to that sovereign state the duty to protect
them against the violence of others. For reasons basically no
different from those offered by Hobbes, a recognition of this
"first duty" of government to provide protection against private
violence, and to do so through the promulgation of law, has
emerged as foundational, not peripheral, to the philosophical
"liberal tradition"°that followed Hobbes. Thus, the state's duty
to protect its citizens against private violence was the core jus-
BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 5-7, 340-48
(1980) (stating that rights provide a check on state power); RONALD DWORKIN,
TAKING RIGHTS SERIOUSLY 274 (1978) (asserting that rights exist primarily
against the state, limiting the state's rightful power); JOHN RAWLS, A THEORY
OF JUSTICE 206-13 (rev. ed. 1999) (stating that justice in a liberal state requires the state to respect and enforce rights that in turn limit the power of
the state).
53. For a full argument to this affect, see Hampton, supra note 51, at
13-19.
54. This is a major theme in the modern revival of formalism. Many contemporary formalists, as well as traditional liberals, see the "ruledness" of law
as a major constraint on otherwise arbitrary and harmful state action. For an
example of liberalism and formalism, see RAWLS, supra note 52, particularly
the chapter on the Rule of Law, id. at 235-43. For a defense of formalism that
relies on an explicitly conservative understanding of the value of tradition, see
Kronman, supra note 23, at 1043-63. For an example of formalism and conservatism, see generally Scalia, supra note 21.
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tification for law, not only for Hobbes, but also for Locke, who
added the protection of private property to the sovereign's responsibilities, but nevertheless followed Hobbes on the equally
basic point that the sovereign must protect the subject against
private violence. 5 Nineteenth and early twentieth century liberal theorists were equally clear: The state has a duty to protect the citizen against disabling private violence, and more
generally, against disabling private exploitation of weakness.5 6
Likewise, and perhaps more to the point here, the Hobbesian
claim that the state has a duty to protect against private abuse
was explicitly embraced by the most influential liberal theorist
of the twentieth century, John Rawls, although not in Hobbes's
classical and graphic language. Rawls is absolutely clear on
the point: In his chapter "The Rule of Law in a Theory of Justice," Rawls found what he called "Hobbes's thesis" 58 to be just
as integral to the liberal rule of law as the "legalistic,"
Shklarian mandate that courts must decide like cases alike, or
in accordance with rules. Even liberal theorists of state minimalism, such as Robert Nozick,59 are clear that the "watchman"
state must protect the citizen against violence from insiders as
well as from outside aggression-such basic police protection is
not one of the services properly privatized.6 ° It is not called the
"night watchman" state for nothing. It is hard to find any
prominent liberal theorist who disputes the Hobbesian thesis,
and for good reason-it is central, not peripheral to liberalism,
that the raison d'etre of the state's existence is betterment of
the lives of its individual citizens, and it is clear that protection
55. Locke, supra note 52, § 123. For a full discussion of the Lockean view
that the state is obligated under the social contract to protect the individual
against private violence, see Steve J. Heyman, The FirstDuty of Government:
Protection, Liberty and the FourteenthAmendment, 41 DUKE L.J. 507, 514-16
(1991).
56.
See JOHN DEWEY, LIBERALISM AND SOCIAL ACTION 32, 56-57 (1935);
JOHN S. MILL, UTILITARIANISM, LIBERTY & REPRESENTATIVE GOVERNMENT 6-
10, 13-16 (H.B. Acton ed., 1910); Robin West, Liberalism Rediscovered: A
Pragmatic Definition of the Liberal Vision, 46 U. PITT. L. REV. 673, 684-701
(1985).
57. RAWLS, supra note 52, at 206-13.
58. Id. at 211.
59.
ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 26-28 (1974).
60. Id. Classical liberals, prominently John Stuart Mill, argued that the
state should not police private morality, but never argued against state policing of private violence. See John Stuart Mill, On Liberty, Ch. IV, in THE
ENGLISH PHILOSOPHERS FROM BACON TO MILL 1007-08 (Edwin A. Burtt ed.,
1967).
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against private violence, for the reasons cited by Hobbes, is essential, not incidental to that betterment
What do we see in our legal traditions, and specifically in
Anglo-American liberal legalism? Although somewhat muted in
contemporary jurisprudence, for reasons I will explore briefly
below, across time, we nevertheless see the same foundational
commitment. The belief, including its attitudinal component,
that the "first duty" of the state is to protect citizens against
violence was widely embraced, as Professor Steven Heyman
has persuasively argued, by the architects, theorists, lawyers,
and jurists of the English common law;6 by the framers of the
6
American Constitution and by the patriots who fought for it; 1
and perhaps most consequentially, by the drafters of the Constitution's Reconstruction Amendments, who argued not only
for a duty of protection, but a duty to provide equal protection
of the laws to all citizens, black as well as white. 6' The duty to
provide "protection of the laws"-and equally-has found its
way into our constitutional blueprint: According to the literal
text of the Fourteenth Amendment, if not its now dominant
judicial interpretation, the state has an affirmative duty to
provide all citizens "equal protection of the law." 4 What they
must protect against, if history is any guide at all, is, minimally, the lethal, violent impulses of others. No state shall
deny equal protection of the law. It must deliver all equally
from the state of Warre and into the state of Peace. The same
sentiment-that the first duty of government is to protect citizens against violations of their rights
by others-appears
in
•
•
66
Justice Marshall's opinion in Marbury v. Madison, surely a
cornerstone of legalist constitutional ideology. "Legalism"-if by
that we mean the professional ideology of lawyers-is as committed to the proposition that law exists so as to protect all of
us against violence and the fear of it, as it is committed to the
61. Heyman, supra note 55, at 512-14.
62. Id.
63. Id. at 546.
64. U.S. CONST. amend. XIV, § 1.
65.
See generally JACOBUS TENBROEK, EQUAL UNDER LAW (First Collier
Books 1965) (1951) (arguing that the Fourteenth Amendment is rooted in the
goal of achieving security of the person against physical attack for freed
slaves); ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING
THE FOURTEENTH AMENDMENT 73-101 (1994) (speculating on meanings of
equal protection, and whether the anti-violence mandate had been taken as
equality's root rather than a prohibition against irrational legislation).
66. 5 U.S. (1 Cranch) 137, 163 (1803).
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morality of conforming one's conduct to rules, and limiting the
sovereign's hand by the constitutional insistence that the sovereign conform as well.
Importantly, the terrain, or reach, of legalism so understood-what I will sometimes call pacific legalism-is contestable, and contested, as is the terrain, or reach, of legalism understood as an ethical attitude regarding the morality of
conforming one's conduct to rules. It is not always clear when
there has been a failure of pacific-legalist ideals and when
there has not, any more than it is always clear when there has
been a failure of legalist ideals that pertain to rule conformity
and when there has not. Nevertheless, as with rule conformity,
we can identify a core set of cases in which the ideal is met, and
a core of cases in which it is not. From that core, it is not hard
to describe the area of agreement. It might be possible to at
least describe, if not settle, the contested terrain, or periphery.
Let me take up these projects in that order.
CORE AND PENUMBRA OF LEGAL PACIFISM
I start with the core. The conventional wisdom that there
has never been, here or elsewhere, anything resembling
Hobbes's metaphorical state of nature is demonstrably false.
Let me suggest the following examples. First, there are all too
many locales around the globe where, precisely because of the
absence of an organized state that monopolizes force, lives are
nasty, brutish, barren, and short in precisely the fashion
described by Hobbes.67 Those societies surely suffer from a lack
of law, and from a lack of "legalism," but not, or not only, in the
sense identified by Shklar. True, it may be that no one with
power in those societies is particularly committed to the morality of rule governance. Force is unpredictable. What is feared,
however, is not the unpredictability of state force; what is
feared is violence. Note the title of the now-famous memoir
from Rwanda: We Wish to Inform You That Tomorrow We Will
Be Killed with Our Families: Stories from Rwanda.8 It was
surely not the uncertainty or unpredictability of the violence
that was dreaded. Lawyers (as well as most others) recognize
these tragedies as a failure of the Rule of Law, and more spe67.
See, e.g., DENIS JOHNSON,
SEEK: REPORTS FROM THE
EDGES OF
AMERICA AND BEYOND (2001) (reporting on pockets of lawlessness, anarchy,
and violence in the U.S. as well as in countries such as Somalia and Liberia).
68.
PHILIP GOUREVITCH, WE WISH TO INFORM You THAT TOMORROW WE
WILL BE KILLED WITH OUR FAMILIES: STORIES FROM RWANDA (1999).
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cifically, a failure of the Rule of Law in the pacific-legalist
sense, not the rule-conformity sense. The Rule of Law is precisely what societies with terrorizing gangs of gun-toting men
and children lack. Surely it is a part of "legalism," ideologically
and attitudinally, to find such arrangements morally objectionable.
A second example of Hobbes's metaphorical state of nature
can be found in a society with an established legal system,
when the state withdraws or never extends the protection of
law to a subgroup. That unprotected subgroup then lives in a
state of nature, or a state of warre, with respect to each other,
even though others enjoy the protection of the Hobbesian state,
and even though the state itself is not endangered by civil war.
Think of the traditional, patriarchal, privatized family, when
the violence within it is unregulated by law. 69 Family members,
when unprotected by the state against the violence of others
within the family, live in a Hobbesian state of nature, with all
the attendant fears, liabilities, vulnerabilities, and indignities
that Hobbes so aptly described, no matter how thoroughly regulated or overregulated life might be outside the family. As anyone who has been victimized by this totalizing violence can tell
you, the harm of such a world is not limited to the violence and
the fear of it. 70 Life becomes nasty and brutish as well as short:
devoid of industry, culture, letters, art, and society, no less so,
than is life in Hobbes's not so mythical state of nature.
There is, furthermore, a consequence of the absence of
state regulation in such subgroups, such as patriarchal families, that Hobbes did not dwell on, perhaps because he did not
notice it, perhaps because he did not view the patriarchal family or the violence within it as particularly problematic. Hobbes
famously hypothesized a rough physical and mental equality
among inhabitants in the state of nature: Natural men, he observed, are roughly equal in strength and cunning.7 ' Because of
their rough equality, all are, roughly, equally vulnerable; anyone can be toppled. For Hobbes, there were two consequences of
69. See, e.g., Bradley v. State, 1 Miss. (1 Walker) 156 (1824) (upholding
the lower court's refusal to instruct the jury that a husband can commit an assault and battery on a wife even though a husband ought to restrain from
chastisement, except in cases of emergency, because it would be unseemly to
try husbands for violence against wives due to undesirable publicity).
70. The best treatment of this phenomenon is still ERIN PRIZZEY, SCREAM
QUIETLY OR THE NEIGHBORS WILL HEAR (1977).
BATTERED WIVES (1976).
71. HOBBES, supra note 42, at 86-87.
See also DEL MARTIN,
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this rough natural equality. The first is that no natural hierarchies persist for long. Even the weakest can and will conspire
with others to kill the strongest.7 2 And second, precisely because of the rough natural equality, all, including the momentarily empowered, have a natural rational motive to disarm and
enter civil society.7 3 Even the strongest is vulnerable, so even
the strongest has something to gain by submitting to the sovereign.
But Hobbes's premise of natural equality, to modern eyes,
looks transparently-and significantly-wrong. Clearly, within
some of the subgroups, insulated against state regulation-and
certainly within families-there is not the natural physical or
mental rough equality Hobbes thought existed with respect to
men in nature, which kept all perpetually at risk from the aggression of all, rather than some perpetually subordinate to
others. Just think of poor four-year-old Joshua DeShaney,
beaten into a state of permanent mental retardation by his
stepfather.7 4 Joshua presumably did not enjoy the sort of approximate physical equality or mental cunning with his stepfather that Hobbes thought obtained in the state of nature, although Joshua surely suffered the consequences of living in a
pocket of lawlessness outside the Leviathan's reach. If we can
generalize from Joshua's tragedy, we might say this: Where the
law's protection does not reach, the result is not that all men
within that unregulated pocket live in a state of nature of the
sort described by Hobbes-equally nasty, equally brutish, and
equally short. Rather, because of whatever natural and systemic inequalities of strength and cunning might exist in those
pockets of life untouched by the Leviathan, life is somewhat, as
described by Hobbes, in the state of nature, but it is something
else as well: It is also hierarchical,and in a way he did not see,
or if he did, he did not worry over it. The withdrawal of the
Leviathan, or the refusal to extend it in the first instance, exacerbates, by not addressing, not only the natural brutalities, but
also the natural inequalities that flow in the unregulated private realm. Some, but not all, are not only at risk of living short
lives, bereft of culture, education, art, and society, overridden
by fear, but also, as a result, at risk as well of living out their
72. Id.
73. Id. at 90.
74. DeShaney v. Winnebago County Soc. Serv. Dep't, 489 U.S. 189, 19596 (1989) (holding that there is no constitutional right to police protection
against violence).
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lives under the thumb and according to the will of the stronger
and feared other.
Third, a Hobbesian state of nature might persist within societies that nevertheless enjoy a limited Leviathan, if citizens
are protected unequally, meaning nonreciprocally, such that
the violence of one group against another is prohibited and deterred, but not the other way around. The consequence of nonreciprocal protection is that the privileged group enjoys freedom from fear, and from domination by others, but the
subordinate group does not. If protection is withdrawn from one
group against the violence of another group, while the second
group continues to enjoy the protection of law against the violence of the first, then the unprotected group lives in a state of
perpetual subordination to the protected group, not because of
natural inequality, but because of the unequal protection of
law. The result of this uneven protection is not the insulated
pockets of savagery Hobbes thought he saw among Native
Indians on the American continent, 75 nor is it the violence and
natural hierarchies of power and violence that we can see, in
retrospect, in family violence. Rather, the result is institutionalized, state-sanctioned slavery. 6 If I can maim you, beat you,
assault you, with no fear of state sanction, but you cannot do
likewise, then it is no hyperbole to suggest that I am your master. More generally, the consequence of unchecked violence
perpetrated by one group, systematically, against another, even
within a society with an established Leviathan, is the subordination of the unprotected group to the domination of the privileged. That refusal to extend equal protection of the law, in its
most extreme manifestation, just is the institution of slavery,
and wherever the institution exists, it is evidence of the simultaneous coexistence, in a Hobbesian framework, of the Leviathan state, and the unequal state of nature to which it delegates some but not all of those whose legal relations are defined
within it.
These three examples of lawlessness-the society with no
law; the society with law but with pockets of life in which vio75. HOBBES, supra note 42, at 89.
76. This was clearly recognized, in southern pre-bellum cases dealing with
violence perpetrated by masters on slaves, in the American south. See State v.
Mann, 13 N.C. (1 Dev.) 263, 1829 WL 252, *3 (1829) ("The slave, to remain a
slave, must be made sensible, that there is no appeal from his master; that his
power is in no instance, usurped; but is conferred by the laws of man at least,
if not by the law of God."). See generally MARK TUSHNET, AMERICAN SLAVE
LAW AND MANN V. STATE (2003).
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lence is unregulated; and the uneven, or unequal, or nonreciprocal protection of law, which defines slavery-are failures of
ideological legalism, by which I mean that they are failures of
the moral commitments that define a legalistic worldview. They
are not only moral failures, offensive to any decent moral or political sensibility. They are specifically legal tragedies, offensive
to specifically legalist sensibilities at the core of legal identityoffensive, that is, to the ideal of civic peace achieved through
law. And, they are not only legal failures, in a positivist sense:
They are therefore moral and political tragedies as well. The
failure of law is at their heart, not margin; the failure is moral
as well as legal; and the failure accounts for their tragic dimension. Law exists so as to counter the force that leads to just
these miserable social configurations. That is not only law's political point. That is law's moral point as well, or at least a
goodly part of it.
Now let me turn to the contested periphery of legalist pacifism: What is the evil of unregulated life, over which the Leviathan is such an improvement? As even Hobbes himself made
clear, the evils attendant to undeterred violence in the state of
nature, as well as in established legal societies, are not limited
to loss of life or even the fear of loss of life.77 As noted above,
Hobbes includes as well the low quality of life that results from
the primacy of fear for one's physical survival, and the exhausting effort required to hold the fear at bay. That low quality of
life is a harm that is itself caused not only by the threatened
violence but also by insufficient legalism: the failure to assure
the safety that follows from establishment of the Leviathan.
There are other such harms, however, at least arguably, both of
the body and mind, that Hobbes did not note, also caused by
the failure of law to protect against violence. Domination of and
dispossession of one's own body, where the threat of violence
suffices to secure the domination, are obviously such harms. 8
Likewise, as critical theorists of the past century have consistently argued, the systemic, rather than sporadic, patterns of
domination where power is not equally bestowed, and protec-
77. HOBBES, supra note 42, at 86-90.
78. This dispossession of the body has been an organizing insight of both
critical race theory and at least radical feminist legal theory. See, e.g.,
Kimberle W. Crenshaw, Race, Reform, and Retrenchment: Transformationand
Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988);
CATHARINE A. MACKINNON, ONLY WORDS (1993); CATHARINE A. MACKINNON,
TOWARD A FEMINIST THEORY OF THE STATE (1989).
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tion not equally granted, has a distorting effect on culture and
on thought-on "consciousness."7 9 That false consciousness, as
well as all the inequalities at the heart of it, is another such
harm. °
There are, also though, arguably more sorts of "violence,"
just as there are likely more harms than catalogued in the
Leviathan, and it is these acts and the harms they cause that
constitute the contested periphery of pacific legalism. The
domination and dispossession of one's sexual body can be
brought on by forceful means different from either physical violence, conventionally understood, or its threat-or at least this
has been the central claim of radical feminists, most strikingly
Catharine MacKinnon, for going on thirty years now.' Economic force exerted against individuals made vulnerable by
their lack of resources engenders fears and occasions harms
also comparable in magnitude to those brought on by violence
and the fear of it, as claimed by critics of market capitalism, including prominent legal progressives, realists, and pragmatists
from the first part of the twentieth century and critical scholars
from the second. Sexual, economic, and physical force against
individuals, overwhelmingly women, who are made vulnerable
by virtue of their time- and energy-zapping role-whether or
not voluntarily assumed-as caregivers to the newborn and the
82
aged, and the state of dependency that role brings in its wake,
79. See ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS
(Q. Hoare & G. Smith trans., 1971) (arguing, contrary to traditional Marxism,
that even heavily authoritarian regimes cannot rely solely on force to maintain
their power, but always require some measure of perceived "legitimacy" as
well in popular consciousness). For a general discussion of the impact that
Gramsci's claim (that "legitimation" and "hegemony," rather than force, are
the means by which both authoritarian and nonauthoritarian political systems
maintain control) has on classical Marxism, see CARL BOGGS, GRAMSCI'S
MARXISM (1976). For a discussion of the outsized role of legitimation theory in
critical legal studies, see authorities cited in note 80 infra.
80. The critical legal studies movement has largely (albeit not entirely)
organized itself around this central insight, in turn taken from mid-century
critical theorists and neo-Marxists. For discussions of the impact of legitimation and false consciousness in law, see Morton J. Horwitz, The Rule of Law:
An Unqualified Human Good?, 86 YALE L.J. 561 (1977); Morton J. Horwitz,
Rights, 23 HARV. C.R.-C.L. L. REV. 393 (1988); Robert W. Gordon, Unfreezing
Legal Reality: CriticalApproaches to Law, 15 FLA. ST. U. L. REV. 195 (1987);
Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1984); Edward
Greer, Antonio Gramsci and "Legal Hegemony," in THE POLITICS OF LAW: A
PROGRESSIVE CRITIQUE 304 (David Kairys ed., 1982).
81. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES
ON LIFE AND LAW (1987).
82.
This is the thesis of Eva Kittay's important critique of liberalism: By
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RECONSIDERING LEGALISM
143
also carry with it harms of a Hobbesian nature. Caregivers the
world over suffer from too much fear, and not enough of the
arts, letters, society, history, and so forth that Hobbes rightly
argued give adult life so many of its pleasures.83 Lastly, harms
within hierarchies of otherwise justifiable power are brought on
through abuses that are short of conventionally understood violence, when unregulated by the state. The spiritual and psychological and psychic force exerted by a priest upon a church
81
85
84 or a teacher
member or an altar boy,
upon a student, or a
captain upon a private,86 or an employer upon an employee,87
virtue of its failure to take the basic biological and moral facts of infancy and
age into account, it cannot possibly deal with the phenomenon of dependency,
and the species-wide need to protect caregivers against harm and want, without sacrificing its basic tenets. See generally EVA KITTAY, LOVE'S LABOR
(2000). She does not, however, as I have in the text, characterize this neglect
as something akin to violence.
83. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE
CAPABILITIES APPROACH (2000).
84. There is to date little scholarship on the nature of the actual harms
endured in these assaultive and largely unregulated relationships, a lack indicative of the silencing of victims, although the "scandal" facing the Church
has of course been widely trumpeted, with well-known and serious consequences for the church's coffers. For some indication of the continuing complicity of the law in the silencing of these harms, see, for example, Richelle v.
Roman Catholic Archbishop of San Francisco, 130 Cal. Rptr. 2d 601, 617-18
(Cal. Ct. App. 2003) (affirming dismissal of emotional distress claim against
defendant priest and diocese, arising out of the priest's alleged exploitation of
plaintiff's piety and trust in the church to pursue sexual contact, on the
grounds that adjudication of the extent of plaintiffs vulnerability to sexual
manipulation by priests would be an unconstitutional inquiry into "profoundly
religious questions"); Roman CatholicDiocese of Lexington v. Noble, 92 S.W.3d
724, 734 (Ky. 2002) (per curiam) (reversing a trial court's refusal to seal records in a priest abuse case, in part "to keep the parties from using the court
as a megaphone to amplify and give credence to scandalous and salacious allegations"); Napieralskiv. Unity Church of Greater Portland,802 A.2d 391, 393
(Me. 2002) (refusing to recognize the tort of negligent supervision as applied to
a parish).
85. For a good discussion of sexual harassment of girls in middle school
and the various forces, both legal and cultural, that tend to silence discussion
of those harms, see PEGGY ORENSTEIN, SCHOOLGIRLS: YOUNG WOMEN, SELFESTEEM, AND THE CONFIDENCE GAP 111-35 (1994). I discuss the harms recognized in the sexual encounters and relationships between teachers or professors and their students that constitute sexual harassment, and contrast them
with the harms in these relationships where there is no actionable sexual harassment, in Robin West, The Difference in Women's Hedonic Lives: A Phenomenological Critique, 3 WIS. WOMEN'S L.J. 81, 108-11 (1987), and more
generally, in Robin West, Sex, Harm and Impeachment, in AFTERMATH: THE
CLINTON IMPEACHMENT AND THE PRESIDENCY IN THE AGE OF POLITICAL
SPECTACLE (Leonard V. Kaplan & Beverly I. Moran eds., 2001).
86. The silencing of discussion regarding sexual harassment and sexual
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toward the end of appropriating the body of the latter for the
former's sexual satisfaction, although not recognizably violent,
carries Hobbesian harms, and is affected by Hobbesian weapons: superior power, exercised in an insulated state of nature,
untouched by the Leviathan's supposed monopoly on legitimate
force.88
Sexual violation and harassment so as to secure sexual satisfaction, the exploitation of physical needs such as food and
shelter so as to secure profit, and the domination of one sex by
the other so as to secure the reproduction and nurturance of
the species, all, I think, are abuses of private power that give
rise to Hobbesian harms. All persist because of the problem artfully identified by Hobbes: the lack of organized civic authority
with the legitimate, delegated power to deter them through its
exercise of delegated force. All of these harms are found in organized as well as disorganized societies, and all are within the
power of the state, through law, to control. For purely Hobbesian reasons, the state's duty to prohibit or minimize these
harms, through law, should be as much a part of the ethos of
legalism, as the duty to prohibit homicide, and for much the
same reasons. Unregulated, the private power that exploits
natural need, that seeks to colonize and possess the body of the
weak for the sexual satisfaction of the strong, or that enlists,
through force and threats of force, one sex to the uncompensated labors of child raising, delegates some, but not all, to the
conditions so aptly described in Hobbes's Leviathan. 9 They result in a life lived in fear, without culture, education, navigation, or pleasure, a life which, around the globe, is nastier,
assault in the military is a function of the continuing vitality of intramilitary
immunity, a reluctance of civil courts to second-guess or micromanage military
decisions that seem to impinge upon military authority and various cultural
codes of honor. For an excellent discussion and critique of military immunity
doctrines in this context, see Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. WASH. L. REV. 1, 77-81 (2003). See also ABCNEWS.com,
Rape Without Repercussion? Women Say Assaults Are Not Prosecuted at Air
Force Academy (Feb. 28, 2003), at http://abcnews.go.com/sections/
2020/US/2020_airforce-allegationsO3O228.html (discussing assault charges
and attempts by command to silence complainants and victims).
87. Although there are now many cases on this topic, the best discussion
of the harms of employment-based sexual harassment, the silencing of victims
of those harms, and the legal system's complicity in that silencing is still
CATHARINE MACKINNON, THE SEXUAL HARASSMENT OF WORKING WOMEN: A
CASE OF SEX DISCRIMINATION (1979).
88.
HOBBES, supra note 42, at 88-90.
89. Id. at 89.
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more brutish, more fearful, and more threatened than the lives
of others not so willfully and blithely abandoned by the state.
To sum up, my basic claim is that a commitment to the
value of state sovereignty, as compared with private abusive
power, and for basically the reasons articulated by Hobbes, is a
core commitment of legalism, not reducible to a belief in the desirability of following rules. However, if there is such a commitment at legalism's core, it is one that has unquestionably
been slighted by contemporary jurisprudential treatments, and
likewise, by contemporary constitutional argument. One sees,
for example, in "Rule of Law" scholarship, extensive writings
expanding upon, and extolling, the Rule of Law understood either in the Shklarian sense of a commitment to rule abidance,
or in the Hayekian sense as a commitment to a minimal state,90
but little on the value of the Hobbesian Rule of Law as an improvement over chaos, deregulation, or civil war. More clearly
still, our constitutional doctrine, and increasingly constitutional consensus, coalesces around an understanding of law itself as that which limits the power of the state through rules,
rather than that which emanates from states so as to limit the
power of private parties. If we take the long view, it may be
that legalism consists of a commitment to pacific legalism, no
less than a commitment to the morality of rules. If we take the
short view, however, or a snapshot view, it is easy to conclude
that pacific legalism is fast disappearing from view, or is no
longer a central, whether or not peripheral, part of legalism.
Why is that? One reason, maybe the main reason, for the
low profile is political through and through: Despite the
strength over the last half century of liberal legalist traditions,
a conservative and libertarian strand of legalism is on the ascendance in American law schools, and that strand of legalism-call it conservative legalism-is overtly hostile toward a
Hobbesian understanding of the state. "Conservative legalism"
values traditions and negative rights against the state, while
the Hobbesian contract represents a break from tradition and
spotlights the Leviathan's right and obligation to monopolize
force so as to protect the commonwealth. 9' Thus, pacific legalism, even its Hobbesian core, introduces a politics into the ideology of legalism that is deeply at odds with the conservative
90. FRIEDRICH A. VON HAYEK, The Safeguards of Individual Liberty, in
THE POLITICAL IDEAL OF THE RULE OF LAW 29, 29-45 (1955) (arguing that the
Rule of Law requires a minimal state).
91. HOBBES, supra note 42, at 124-25, 144-45, 153.
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and libertarian interpretation of legalism now on the rise in
American law schools as well as on the Bench. A second reason,
however, for the relative lack of an explicit recognition of the
centrality of "Hobbes's thesis" to ideological legalism is simply
the insularity of jurisprudence, and the resulting barriers dividing legal and political theory. Hobbes is typically read as arguing the preferability of a state-even an absolute, totalitarian state-to the chaos and terror of total war, civil or
otherwise-the preferability, in other words, of the security of a
strong state over the nightmarish freedom of its total absence
in a metaphoric state of war.92 Thus read, Hobbes has little to
say, at least jurisprudentially, about the conduct of state affairs, or the content of laws, in established societies with operating state Leviathans.
This is, however, far too limited a reading of Hobbes, too
limited an understanding of the domain of jurisprudence, and
too limited an understanding of the ideology of law. The state of
nature is not simply a mirage or metaphoric device; there are
contemporary societies better described by Hobbes's early chapters in Leviathan, than by any positive, anthropological account
of law and legalism. More to the point here, there are pockets
of life in societies, including our own, that clearly have an organized Rule of Law, in which the protection of that Rule of
Law is absent: most strikingly the state of slavery and the
wave of lynchings that came in its wake, but also the violent
domestic home, protected against the Leviathan's reach by concerns for privacy in the twentieth century, and by an overt embrace of patriarchy in the nineteenth. And there are still pockets of immunity from regulation, protecting particular
relationships that carry Hobbesian harms: not only the priest's,
captain's, teacher's, or employer's sexual aggressions upon hierarchic inferiors, but also the still largely unregulated exploitative labor contract, or the underpoliced minority and poor
communities, unprotected against civil violence by underfunded, understaffed, or undermotivated police forces. In these
pockets of lawlessness, victims suffer at the hands of exploitative stronger individuals. And in those pockets of immunity, the
suffering is caused not only by the stronger's stronghold, but by
the lack of legalism that facilitates it: the failure of the law to
assert or to claim a monopoly on the use of legitimate force. In
92.
Id. at 128-29.
93.
See JOHNSON, supra note 67.
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none of these cases-these failures of legalism-can the harms
experienced by the weaker members be fairly described as the
failure of the strong to "play by the rules." These failures of legalism are, rather, failures of pacific legalism. They are the
harms caused by our collective failure to assure for all the degrees of security and freedom from fear that law's protection,
and only law's protection, against the violence of others, can
bequeath.
A HOBBESIAN AMENDMENT TO SHKLAR'S LEGALISM
Let me return to Shklar's critique of legalism. Again,
Shklar reaches two, largely critical, conclusions. The first regards the political stance implied by legal ideology. Legalism,
Shklar argues, implies a broadly monolithic conservatism-a
respect for rules for the sake of rules quickly becomes a respect
for the past, just for its own sake. As a result, the professional,
ideological worldview that legalism constitutes is anthropologically conservative. 94 It is easy enough to see how Shklar is led
to the conclusion that legalism is "by definition" a conservative
ideology: Rules bind us to the past. When we follow rules, we
perpetuate, or maintain, the ordering those rules embrace, constitute, or reflect. If we believe that following rules is not just
prudent but moral, then that belief defines a way of life, or an
ethic, that stands in clear opposition to a way of life that tolerates or advocates bucking the rules, or overthrowing the order
from which they were promulgated, or ignoring them altogether, or even, for that matter, reforming them or criticizing
them. As Professor Paul Kahn has recently argued, echoing
Shklar, our conception of the Rule of Law commits the lawyer
to a conservative understanding of her task that stands her in
opposition not only to the revolutionary and the anarchist, but
even to the legislator,who sees the law he creates as a means to
change the status quo, rather than as a means of conserving
it.95 A commitment to an ethic of rule abidance puts one at odds
with, not in service to, a skeptical, reasoned, and critical stance
toward the value of the rules themselves, and a willingness to
incur personal and social risk to see them tested.
Now, the question is whether a neo-Hobbesian amendment
SHKLAR, supra note 2, at 10-17.
PAUL W. KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING
LEGAL SCHOLARSHIP 68-73 (1999) (contrasting "political" with "legal" understandings of events).
94.
95.
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changes this picture of ideological legalism's politics. On first
blush, the answer seems to be no, or that if it effects a change,
it is for the worse. Hobbes, after all, eschewed both political
democracy and the natural rights tradition-seemingly opening
the door 1to
unrestrained state power, limited only by sovereign
6
whimsy. The unlimited Leviathan, restrained neither by the
popular will nor by the rights of individuals, appears to modern
legalists, as often as not, as either the blueprint for dictators
and fascists-best exemplified by Saddam Hussein or the Taliban-who can maintain power so long as their regimes are
marginally better than the chaos of war that might replace
them, or alternatively, the blueprint for a regime, whether or
not elected, that wishes to govern without respect for the rules
that stay the hand of the sovereign: the regime, perhaps, of a
John Ashcroft. This reading of Hobbes, however, is false, and
even cartoonish. Hussein lost any legitimacy long ago, if
Hobbes's Leviathan is the judge, when he became a threat to
the survival of his own people, 7 and there is likewise enough of
the civil libertarian in Hobbes's description of the judiciary, of
the judicial function, and of the nature of judging to give pause
to any devotee of Ashcroftian justice."
More important, it is surely possible, as political theorist
Jean Hampton has recently made clear,9 9 to read Hobbes's
Leviathan as implying not an apologia for totalitarianism, but
rather, a forceful and subtle case for democracy: If we take seriously the notion that a compact underlies the Leviathan's
claim to legitimacy, then the Leviathan must legislate in the
interest of the commonwealth, and the only route to making
sure that it does so is through the mechanisms of democracy.
Further, and of greater relevance here, Hobbes's account of the
positivist origins of property, and entitlement, make the way
for a robust and redistributive state role in the securing of economic justice. Hobbes's account of property, its origins in state
action, and the incoherence of natural views of rights to prop96. HOBBES, supra note 42, at 131-33 (on democracy); id. at 186-87 (on
natural reason); id. at 200 (on rights).
97. Id. at 153.
98. Id. at 188-96 (stating that for commands to be law, they must be
known and published, and interpreted in accordance with principles of equity,
and that unreasonable sentences do not constitute binding precedent on future
judges); id. at 203-05 (stating that ex post facto laws are invalid, as are sentences increased after the crime has been committed over the published sentence prior to the crime).
99. Hampton, supra note 51, at 13-19.
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erty,'00 are indistinguishable from those of Cass Sunstein, 0 1 as
well as any number of critical and liberal scholars: Property is
socially constructed through and through, the state is present
in the demarcation, and the state retains the power, accordingly, to regulate its use, so long as it does so in the public interest. °2 This is not only Sunsteinian administrative and constitutional theory; it is Hobbesian jurisprudence as well.
There is, however, a deeper connection between Hobbesian
jurisprudence and contemporary, nonconservative understandings of law's promise. Hobbes saw, and expressed better than
anyone before or since, the harm done to individual lives
through the exploitative abuse of private power. If unchecked,
the lives in the state of nature constructed by private power are
brutish, nasty, short, and barren-devoid of pleasure. The
state, representing the commonwealth, and resulting from social agreement, and in the interest of all, exists to stave off that
harm, and it does so by requiring mutual disarmament. This is
a point of departure regarding law's meaning, essence, and
purpose that is, I believe, widely accepted by legal professionals, but that is also utterly different from the point of departure
criticized by Shklar. °3 Further, it implies a political perspective
that is decidedly not conservative, when transposed to modern
parlance and controversy. For Hobbes, the target of law-its
raison d'etre-is the abuse of private power, and the goal of law
is a social life free of fear of that abuse. The goal of law is not
only to encourage or force rule-compliant behavior. The goal of
law is to create the conditions for a higher quality of life than
could be had in the absence of law, and the reason for its neces-
100. HOBBES, supra note 42, at 170-76.
101. CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993) (arguing that
the Constitution requires a questioning, skeptical, rational, and continual reassessment of claims to all entitlements).
102. Prominent legal realists and critical legal scholars have argued this
basic claim in the context of various areas of law. See generally Robert Hale,
Coercion and Distributionin a Supposedly Non-Coercive State, 38 POL. SCI. Q.
470, 479 (1923) (discussing coercion within supposedly free contracts and arguing against distinguishing between a private realm of freedom and a public
realm of coercion); Morris Cohen, Property and Sovereignty, 13 CORNELL L.Q.
8 (1927) (arguing that property rights are a product of state power and become
an exercise of power indistinguishable from concepts of sovereignty); Frances
Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96
HARV. L. REV. 1497 (1983) (discussing the legal construction of family); Morton Horwitz, The History of the Public/PrivateDistinction, 130 PA. L. REV.
1423 (1982) (attacking the distinction between public and private).
103. SHKLAR, supra note 2, at 1-2, 8-12.
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sity is the psychology and effects of unregulated private power.
These are political values central to law's point and hence central to legalism.
These political values are also, however, closer to progressive than libertarian interpretations of the liberal tradition
that, like Hobbes, see the exploitation of vulnerability and the
abuse of private power as an impediment to the enjoyment of
social and civilized life. As such, they are the political values at
the heart of the most successful progressive political movements of this country's past. The abolitionist movement aimed
at securing the protection of the Leviathan for all, and not just
for some, against the violence of others. °4 Feminist movements
of the last two centuries have aimed to secure state protection
against domestic violence, reform rape law, and secure reproductive freedoms, and all three goals can best be seen as a
movement aimed at securing the protection of the Leviathan
against the violence of patriarchy. Progressives over the last
century and a half have sought to secure positive welfare
rights, labor rights, and even environmental rights, against the
exploitative and abusive use of private power-to secure the
"four freedoms," including the freedom from fear,' that Roosevelt identified. The welfare movement, broadly defined, has
likewise been grounded in a Hobbesian political impulse that
sees the need for those rights as a function of the vulnerability
of some to the economic and exploitative power of others, and
as a harm, accordingly, from which the state is obligated to protect us. °6 More locally and recently, the movement for gun con104. See LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 8788 (photo. reprint. 1968) (1860) (arguing that the language of the Constitution
imposes a duty on government to protect people from private violence);
HARRIET BEECHER STOWE, UNCLE TOM'S CABIN (1852).
105. FRANK FRIEDEL, FRANKLIN D. ROOSEVELT: A
RENDEZVOUS WITH
DESTINY 360-61 (1990) (quoting President Franklin D. Roosevelt, State of the
Union Address (Jan. 6, 1941)).
106. See CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN
RIGHTS, NAMED AND UNNAMED (1997) (discussing textual grounds for affirmative constitutional obligations to provide for basic welfare); Frank I. Michelman, The Supreme Court 1968 Term: Foreword: On Protecting the Poor
Through the FourteenthAmendment, 83 HARV. L. REV. 7, (1969) (same); Akhil
Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 HARV. J.L. & PUB. POL'Y 37 (1990) (same). Recently journalists have
done more than lawyers to make vivid these harms and their connections to
exploitation. See generally BARBARA EHRENREICH, NICKEL AND DIMED: ON
(NOT) GETTING BY IN AMERICA (2001) (describing a journalist's undercover observations of the plight of the minimum wage earner); DAVID SIMON &
EDWARD BURNS,
THE CORNER:
A YEAR IN THE
LIFE OF AN INNER-CITY
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trol in this country can be seen in Hobbesian terms: To secure
the law's protection against the other, we all, not just some,
must forego lethal violence and its weaponry. One could readily
conclude that we have a right to gun control, in fact, rather
than a right to guns, if we were to take a little more seriously a
Hobbesian interpretation of the Fourteenth Amendment.1 0 7 The
current legal movement to secure the protection of inferiors
against the sexual and exploitative power of superiors-in the
military, in religious institutions, in schools, and in workplaces-can likewise be understood as an attempt to end this
exemption from the protection of the state against the harms of
physical and invasive exploitation in these private spheres.
The admittedly counterintuitive connection between
Hobbes and these progressive causes is that both see the problem of private power as the political problem for which law
poses a solution. It is this point of commonality between political progressivism and legalism-the focus on private power as
the raison d'etre of law-that Shklar's understanding of legalism entirely overlooks. And, it is because she overlooks it that
she sees, in legalism, nothing but an uncomplicated monolithic
conservatism. Lawyers do see the need and the value in conforming conduct to rules. Sometimes, lawyers see the need, in
social life, for law where there has been no law: in the domestic,
patriarchal, violent home; in the deregulated gun industry and
the violent culture that is in part its consequence; in the underregulated world of labor contracts and the sickness, fatigue,
and dulling of life that is its result; in the Catholic confessional
booth, the marine barracks, the production line, or the teacher's
office, where unregulated sexual aggression can lead to the
scarring of spirit, emotion, social engagement, and growth.
What lawyers see, when they see the need for law in these protected, private spheres, is the same brutality, nastiness, and
low quality of life that so frightened Hobbes. When lawyers
urge a piercing of the various veils of privacy that insulate and
naturalize those spheres, so that the social ills within them can
be addressed, they are assuredly acting toward a political goal.
NEIGHBORHOOD (1997) (describing two journalists' observations of inner-city
life on a street corner in Baltimore for one year); Jack Newfield, How the Other
Half Still Lives: In the Shadow of Wealth, New York's Poor Increase, THE
NATION, Mar. 17, 2003, at 11-17 (highlighting the obstacles and problems of
the poor that go largely unseen and ignored by the rest of society).
107. The citizen gives over the perfection of his right to self-defense to the
sovereign, who in turn has a duty to protect the citizen against violence.
HOBBES, supra note 42, at 153.
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But they are also acting on legalist impulses. We should not
have these nasty, brutal, short lives in our midst, brought on by
an irresponsible or neglectful state that refuses to extend the
protection of its law to all. It is the place of law, and the place of
the lawyer acting on legalist values, to see that we do not.
Not to overstate: The point is not that all lawyers support
these political campaigns, or that by virtue of their profession,
they should. Our professional values are multiple and conflicting, our "legalism" is complicated. Rather, my point is that a
lawyer who does embrace these campaigns does not do so at the
cost of some compromise of an essentially conservative professional ethic that values only conformity to the rules laid down,
sees law as always there, and views as implicitly permitted all
that is not forbidden. Legalism, as a professional ideology, is
indeed a political ideology, as Shklar has argued. But it is complicated and conflicted politics, and we are all the better for it.
PACIFIC LEGALISM AND GLOBAL POLITICS
I will comment more briefly on Shklar's second and perhaps more consequential critique of legalism: Legalism, understood as an ethical attitude that finds compliance to rules a
morally attractive way of being in the world, is, as an ideology,
inappropriately injected in world and international geopolitics
where it has little relevance. To first provide some context:
Shklar originally put forward this argument in 1964, against
the backdrop of the war crimes tribunals in Nuremburg and
Tokyo following World War II, and the Stalinist political trials
in Moscow during the thirties, and she then reaffirmed it with
the second edition of her book in 1986. Little had happened in
that twenty-year period between editions of the book, Shklar
argued in the preface to the latter edition, to shake her conviction that the "war crimes tribunals," whatever good they do, do
not evidence the endurance of legalism.18 Rather, they evidence
not just the futility but the bankruptcy of legalism's claim to
respond to crimes against humanity, and illegal war, with nothing but the moral force of rules. 09 Even the most successful,
and most clearly politically justifiable war crimes tribunalsthe Nuremberg trials-she argued in the mid-eighties, had not
in fact become a precedent for any emerging body of law."'
108. SHKLAR, supra note 2, at xiii.
109. Id. at 134-35.
110. Id. at xiii.
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Now, another twenty years later, perhaps she would not be so
confident of her mid-eighties conclusion. War crimes tribunals,
truth commissions, the International Criminal Court, and a
score of more particularized commissions and tribunals proliferate,"' and seemingly evidence a trend different from the one
Shklar saw unfolding in the mid-eighties. Nevertheless, these
modern tribunals arguably underscore rather than undermine
her critique. The imposition of criminal laws and norms, the
establishment of legalist institutions, procedures, and punishments-in short, the spread of legalism, understood as an ideology and as a commitment to the morality of following rulesmight still seem, to many, as no less out of place in these modern trials as in the Tokyo trials of which Shklar spoke, and for
some of the same reasons. The criminal trial, Shklar argued, is
the pinnacle achievement of legalism." 2 The failure of the
international criminal trial to achieve anything other than occasional political ends is the sign of the limits of legalism. And
as the criminal trial is emblematic of legalism, its failure represents the failure of the international legal project in toto." 3 The
modern international trial may be equally problematic, or at
least so its modern critics currently argue."'
I do not, however, wish to enter that debate; rather, I want
to urge that the conclusion regarding the inappropriateness of
legalism drawn from the Shklarian critique of the international
war crimes trial is too sweeping, even if the premise is correct.
It rests on an unduly cramped account of the ideology of legalism. The criminal trial may not be the pinnacle of legalism, if
legalism is understood broadly as encompassing not only the
moral attitude that conforming to rules is a good way to live,
but also the moral attitude that the rule of law is preferable to
the state of nature. The role of law, given a more expansive un111. See, e.g., International Tribunal for the Prosecution of Persons Responsible for the Prosecution of Persons Responsible [sic] for Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia Since 1991, 33 I.L.M. 1590 (1994) (providing an example of
a more particularized tribunal).
112. SHKLAR, supra note 2, at 143-51.
113. Id.
114. See, e.g., Paul W. Kahn, On Pinochet,BOSTON REV., Feb.IMar. 1999, at
19, 22 (claiming that crimes against humanity lack legalist status because
there is no political community, and that humanity has not legislated against
such actions); David Luban, A Theory of Crimes Against Humanity 76-88 (unpublished manuscript, on file with author) (reviewing and then answering
various theoretical critiques of universal jurisdiction over crimes against humanity).
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derstanding of legalism, is not to punish wrongful acts that
occur in the midst of wartime-it is not simply to insist that
even in the midst of war, actors must conform their conduct to
rules. Rather, the role of law, on this view, is to actually deter
the warre-keep it from happening-not simply regulate its aftermath. The point of law is to displace war, not to legitimate it
by punishing the wrongful acts that occur within it. The pinnacle legal moment, if we envision a legalism that embraces the
pacific as well as orderly end of law, is just not the criminal
trial. Rather, the pinnacle moment is the political moment of
law's creation. Thus, in the domestic context, the pinnacle moment of constitutional legalism is not Marbury v. Madison," 5
but the Constitutional Convention, or the Reconstruction Congress, or the passage of the Nineteenth Amendment. The pinnacle moment of ordinary legalism is not the trial, contrary to
Shklar's insistence;" 6 it is the legislative process. And, in the
international context, the pinnacle moment is neither the occasional nor the regular criminal tribunal constituted after the
fact to punish illegal acts of aggressive war, or crimes against
humanity that may be committed within them. Rather, as in
the domestic context, the pinnacle "legalist" moment is the institutional "legislative moment": the moment when, in a social
compact, sovereign heads of nation states agree to give up their
natural rights to use lethal power in exchange for rights of protection from the commonwealth of nations, and the moment
when those rights of protection are made meaningful through
the passage of positive international law, backed by the international sovereign's willingness to use force to employ them.
Needless to say, we have not had such a moment. But we
at least know what to look for. Evidence that there has been
such a moment will be when the internationalized sovereign
uses its delegated force so as to actually hold at bay-not legitimize after the fact-acts of war by the individual members
of the commonwealth. And, as in the domestic context, it is
politics, passion, and rational self-interest, not trials or a commitment to rules for the sake of rules, that will bring such a
moment to pass.
I would suggest the following paradoxical conclusion. The
test of the value of ideological legalism in the international
sphere, and in the context of the recently concluded war in
115.
5 U.S. (1 Cranch) 137 (1803).
116. SHKILAR, supra note 2, at 144.
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Iraq, should not be the success or failure of the war crimes tribunals that the Bush administration has promised will follow
the cessation of the hot war phase of this struggle. Those tribunals will almost certainly be vulnerable to Shklar's critique.
They may well appear legalistic, but be anything but. There
will likely not be even the slightest pretense that the victors intend to submit to the procedures and institutions they impose
on the vanquished. The trials themselves will have all the earmarks of victor's justice. The trials will satisfy no one that legal
justice has been meted out. There will likely be numerous trials
of Iraqis and no trials of American or British commanders or
forces. The thoughtful critic of international law, and international legalism, will declare these trials worse than just a failure of legalism. They will legitimate, in the name of law and
peace, an aggressive war-while American patriots declare
them a victory for justice and fairness-and further solidify the
status quo between powerful and powerless nations-while coalition forces proclaim them emblematic of equality and liberty
both. More broadly, as Shklar would have predicted, they will
neither represent nor constitute progress for civilization, for
peace, or for international justice. None of this is inevitable, of
course, but at this point, it all looks depressingly more probable
than not. Shklar, presumably, would side with the thoughtful
critics.
If, however, we regard law's pacific ideal as also a part of a
legalist ideology, then it is not the war crimes tribunals that
follow this war that are the telling gauge of the successes or
failures of legalism toward the end of constraining violence or
aggression. Shklar's insistence that the criminal trial is emblematic of the success or failure of public international law, I
believe, is a function of her undue insistence that legalism is an
ideology solely tied to the morality of rule conformity. Rather, if
we consider the pacific ends of law, then it is not the trial that
follows war, but rather, the attempt by international bodies to
prohibit elective, nondefensive, and unauthorized wars, including this one, that is emblematic of legalism's successes and
failures. If we look at these Hobbesian, law-making moments
that preceded the war, rather than the war crime trials that
will follow it, as either the canaries in the mine or the harbingers of hope, a different picture emerges of the appropriateness
of legalism in geopolitical affairs.
Law failed to disarm Hussein, and law failed to contain
United States belligerence; those are the canaries in the mine.
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But-and here is the harbinger of hope-neither failure was a
foregone conclusion. Prime Minister Blair apparently truly believed that the force of law-United Nations resolutions,
backed by a demonstrated willingness to enforce them, the oldfashioned command of the international sovereign-would force
Hussein to comply, in a classic, Hobbesian manner and for
classically Hobbesian reasons. 117 Blair was undercut in his
effort by both the United States and France: the United States
because it had no intention of only threatening force, instead of
using it, and France, because it had no intention of using force,
instead
of only
threatening
it. 118 Both
attitudes
defeat
deterrence. Similarly, it is also clear, or at least the New York
Times so reported, that Kofi Annan truly believed that law
would stay the hand of the United States.11 9 Although it is not
clear why he thought that, one can easily construct a
Hobbesian account of why he might have: The common
vulnerabilities, shared by the United States with other
countries, to terrorism give all a rough Hobbesian equality, and
that fact alone might convince the United States, if acting
rationally and prudently, to continue along a diplomatic route,
even against its warlike instincts. This Hobbesian outcome
proved illusory as well. The United States, it became clear as
the debate progressed, felt or professed no such equal
vulnerability, terrorism or no, and consequently had no
professed, felt, or actual interest in submitting to an
international Leviathan, with its dictates prohibiting elective,
nondefensive, and unauthorized war. Thus, the failure of
legalism to stave off war was perhaps the inevitable outcome.
117. See Prime Minister Tony Blair, supra note 28, available at
http://www.number-10.gov.uk/output/Page3294.asp.
118. For a sympathetic general discussion of the dilemma Blair faced, see
Jane Stromseth, Law and Force After Iraq:A TransitionalMoment, 97 AM. J.
INT'L L. 628, 631 (2003). For a similar analysis, pointing out that the U.N.
Charter's Hobbesian purpose ("a compact by which the member states accept
constraints on their use of force in the context of a binding system of collective
security") and effectiveness has been weakened not so much by America's disproportionate power, as by the members' refusal to maintain a strong sanctions and inspections regime in Iraq, thus undermining the basic compact of
constraints in exchange for collective security, see Edward C. Luck, Making
the World Safe for Hypocrisy, N.Y. TIMES, Mar. 22, 2003, at All; see also
Joseph R. Biden Jr., Why We Need a Second U.N. Resolution, WASH. POST,
Mar. 10, 2003, at A21 (arguing that the French refusal to use force under any
circumstances, and the U.S. refusal to consider not using force, effectively destroys the possibility for resolving the crisis peacefully and "threaten[s] to
drive the interests of our countries over a cliff").
119. Felicity Barringer, U.N. Secretary General Faces His Most Difficult
Moment, N.Y. TIMES, Mar. 30, 2003, at B1.
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Beneath the surface, however, the very occurrence of this
very public debate over the legality of both Iraq's weapons and
America's war evidences an expansive moment, I believe, for
the reach of pacific legalism. Although law did not deter this
war, one can see a rudimentary outline of how it could have
done so and even how it might do so in the future: Had the
United States and France both acted in good faith, perhaps
they could have jointly and peaceably disarmed Iraq. Had the
United States either had or felt a greater Hobbesian natural
equality with other states, it might have been deterred from
taking an action that violated the will and desire of the whole.
Had France accepted the need for force to enforce meaningful
prohibitions of Iraq's weaponry, and telegraphed its willingness
to use it, perhaps the U.N. Resolutions, with continuing monitoring, could have been enforced with the threat of force, rather
than its use. Had any of this happened, then legalism might
have prevailed in the sense meant by Hobbes: The American
state, sovereign in nature, might have foresworn its right to the
perfection of its own defense, in exchange for the protection of
the international community. In exchange, America might have
agreed to abide by international rules. This did not happen,
and it seems we are a good distance from the day when it
might.
But that we can envision the possibility that law could preclude war in this way speaks volumes. Sovereign states,
through their representatives, as well as political theorists,
academic analysts, television commentators, op-ed authors, and
persons-on-the-street quite literally all over the world, talked
for months, and with some seriousness, not only about the illegality of weapons of mass destruction, but also about whether
this war in particular, and preemptive war in general, is "legal"
or "illegal," about why war cannot be legitimate if it is neither
"defensive" nor "authorized," as required by a legal document,
and why it cannot be waged if it is not legitimate. These discussions proceeded as though they mattered; as though the answers to these questions had consequences; as though law could
deter as well as rhetorically forbid unauthorized war; as though
we all naturally and rationally agreed that the world socially
constructed by law is preferable to the social, cultural, biological, and ecological destruction and mayhem brought on by war's
machinery; as though law's sanctions, orders, resolutions, and
preambles would all constitute an alternative to war; as though
we believed that we all naturally prefer a life in which we
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forego self-defense so that all of us, certainly including Americans, might live less brutal, less nasty, and longer lives. And,
these discussions proceeded as though we all agreed that the
Leviathan therefore operates as an alternative to the natural
warre of all against all; as though we all agreed that law has
displaced nondefensive warre internationally as well as domestically; as though we all agreed that such wars are as foreign to
our current way of thinking-as far in the past, as mythical, as
distant-as the Hobbesian state of nature itself.
After that failed moment of lawmaking, and after the war
that followed its failure, that impassioned, idealistic, hypothetical debate itself seems a part of a distant, mythic, even
surreal, past. What might last, though, is some clarity of vision.
At least we can now see internationally what Hobbes saw long
ago, and that is the political precondition of such a momentous
sea change in world politics. Occupants of the natural state,
whether sovereign states or sovereign individuals, must be, and
must feel themselves to be, vulnerable if they are to be committed to mutual disarmament. And the emergent sovereign,
whether it be a league, a council, or a coalition, must then be
willing, and feel itself to be willing, to use force, so as to effectively threaten force, to deter aggression. Only then does law
emerge, and with all its promise.
That shared understanding is itself some evidence that legalism has in fact increased its domain. And, whatever
Shklarian skepticism might be in order regarding the proliferation of war crimes tribunals, that our consciousness of pacific
legalism as a serious alternative to war has expanded its domain this way is surely a positive thing. Legalism, as understood by Hobbes and the United Nations Charter12 ° both, shows
the contours of a world in which, through law's promise, life
might be less nasty, brutal, and short for many millions of people. That promise, in the international context as well as in the
domestic, is one in which the lawyers that constructed it should
take considerable professional pride.
120. For a short but lucid discussion on the shared theoretical underpinnings of the U.N. Charter, see Luck, supra note 118. I am grateful to Jane
Stromseth for her notice of this essay, and for her thoughtful comments
throughout the formulation of this article.
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